In a recent civil case, the British Columbia Supreme Court had to decide on the admissibility in evidence of a database of transactions under a contract, and the results of SQL analysis of the database that produced a number of Excel format spreadsheets. The people who generated the spreadsheets were available to testify in person about how they had run the queries:Animal Welfare International Inc. v. W3 International Media Ltd., 2013 BCSC 2193 (CanLII).

The opposing party submitted that the analysis done in extracting the data constituted expert evidence, and the witnesses needed to be qualified as experts before their evidence – and the spreadsheets – could be admitted. (para 46 – 51)

The court held otherwise (para 58), essentially that the database itself was real evidence and the spreadsheets were just ways of making it readable by humans without manipulation or analysis. (There is also much discussion of the business records exception to the hearsay rule, both statutory and at common law. The court held firmly that the records were business records for this purpose.)

Does that sound right to you? At what point does the process of making data meaningful require expertise of a type, or to a degree, that the person producing it should have to be qualified as an expert witness? (cf Pasko v Willis, 2004 ABQB 154 (CanLII) para 10.)

Is this a routine case? Few if any of the cases cited in the decision dealt with the expertise question.

How about the ‘database as real evidence’ argument (so not documentary evidence, so not hearsay – so don’t even need the business records exception… it’s all just mechanically recorded, like the counter in a turnstile as evidence of the number of people who entered an auditorium)?

Comments

John:
This should have been dealt with as electronic records management system issue (ERMS issue), i.e., requiring proof of the integrity of the ERMS in which the e-records in question were stored or created. But the B.C. Evidence Act doesn’t yet contain electronic record provisions, which could have raised an issue, if argued, as to whether the business records provisions of s. 42, can handle e-records issues. Paragraph 53 sets this case up as ERMS-dependent. Therefore the capabilities of s. 42 could have been raised but weren’t.
See your arguments John, on this “electronic records” issue in, “Canadian Electronic Commerce Legislation,” (2002), 17 Banking & Finance Law Review 277 at 328 , and my reply in, “Electronic Records as Documentary Evidence” (2007), 6 Canadian Journal of Law and Technology 141 at 156.
Also raised in these articles but not in the decision, is the out-lived validity of the theory upon which business record provisions such as s. 42 BCEA, (and s. 35 OEA, and s. 30 CEA), are based, that business records warrant an exception to the rule against hearsay evidence because the profit motive is a sufficient guarantee of the accuracy of record-keeping. There are now several reasons why that isn’t necessarily so–see my article at 150-151.

As a techie, the big issue is the chain of evidence. If one dumps the data to a spreadsheet without interpretation, its like an all-too-erasable piece of paper. If one does any spreadsheet calculations, you’d better be prepared to back them up with and expert’s opinion.

I actually write SQL statements from time to time and was pleased to see that the actual process of analysis of the database using SQL was scrutinized. A very subtle change in the wording of an SQL statement can significantly change the results returned. At [56] and [58] the nature of a data extraction was described and at [65] it was noted that the SQL statements used were disclosed and it was further noted that an attempt at verification of those statements was done. That helps improve the confidence in the evidence, assuming that no one deliberately altered the contents of the database prior to the extraction of the evidence.

As I understand admissibility, the question is for what purpose. If it’s to support a complex inference such as “this is a good business model” it probably requires an expert interpretation. But in this case the SQL queries were just summing or tabulating simple data; Any judge can understand that and it’s questionable whether any expert evidence could be admitted(for that purpose). What seems to me more problematic is the situation where there is disagreement between the pre-trial judge and the trial judge as to whether expert evidence could have been helpful to the fact-finder. Are litigants really expected to guess what inferences the trial judge is going to be able to make?

If the programmer crafted a query that extracted data from various fields and aggregated them to create a new data point (e.g., pulling from multiple values to calculate a cost of goods sold), then the programmer is doing more than simply extracting objective data and is indeed exercising the judgment of an expert (as to the proper components of data that should be excluded or included to properly compute the cost of good sold).

At that point, the programmer has transgressed the bounds of simple data extraction by SQL query and offers an expert opinion (on accounting, not SQL databases). I confess no grounding in the applicable Canadian law, and acknowledge that, if the SQL queries employed were disclosed along with the relevant schema of the database, the programmer’s assumptions about COGS might be examined and challenged without the absolute requirement that the programmer testify.